Child Witnesses (NSW)

In criminal matters, it is common for courts to hear evidence from children. Child witnesses can be the alleged victims of crimes but they may also give evidence in relation to offending in which they are not directly involved.

Children are competent to give evidence provided they can demonstrate understanding of the difference between truth and lies. How the court establishes this depends on the child’s age and maturity and differs from case to case.

When child witnesses give evidence, different procedures are followed from those used for adult witnesses. Particular measures may be taken to ensure the young witness feels comfortable and is not unnecessarily traumatised by the experience.

Competence of child witnesses

Under Section 13 of the Evidence Act, it is presumed that all persons, including children, are competent to give evidence. However, either defence or prosecution can raise the issue if they believe a witness’s competency is in doubt.

A person is not competent to give evidence about a matter if:

• He or she is unable to understand a question about it;
• He or she is unable to give an answer that can be understood.

A person can be a competent witness in relation to some facts but not others. If a person cannot take an oath, they may give unsworn evidence after the court informs them that they must tell the truth and not feel pressured to agree with untrue.

If the court finds that a child is not a competent witness, the child will not be called to give evidence and any statements they have made will be precluded.

Judicial warnings about child witnesses

A judge must not warn or say anything to the jury suggesting that the evidence of children is generally unreliable or less credible than the adult evidence. However, a judge may warn the jury that a particular child’s evidence is unreliable and explain why.

Vulnerable persons

Under the Criminal Procedure Act 1986, children younger than 16 are classed as ‘vulnerable persons’ along with cognitively impaired people, like those with an intellectual disability or a severe mental illness. This means that they will generally not be required to give oral evidence in relation to violent offending unless there are special reasons.

Evidence in chief

Vulnerable witnesses are usually allowed to give their evidence under conditions that make the experience easier. This includes giving their evidence in chief as a pre-recorded interview (completed by the police). Any inadmissible statements may be edited from the pre-recorded video prior to it being played in court.

Cross-examination

When a child faces cross-examination, this is generally done via closed-circuit TV, rather than from within the courtroom. This allows the child to remain in a separate room from the accused and shields them from the courtroom’s hostility and formality. The cameras are positioned so that the child witness cannot see the accused. Child witnesses are allowed as many breaks as they need.

Where CCTV facilities are not available, a vulnerable witness may be permitted to give evidence in some other way, such as from behind a screen in the courtroom or from alternative premises.

Vulnerable witnesses are also permitted to have a support person, like a parent or friend, sit with them while they give evidence.

Law reform and child witnesses

The problems of having children give evidence in an adult-oriented court system have been documented in research. These include children being asked to recount events a long time after they occurred, being questioned in inappropriate language, having to face the accused and being subjected to trauma and stress.

A lot of child witnesses express dissatisfaction with the experience of giving evidence and feel that they did not get to say what they wanted to say. There is concern that the stress involved in giving evidence may adversely affect the reliability of a child witness’s evidence. However, there are steps that can be taken to mitigate this. These include modifying the court environment, fully preparing the child for giving evidence and better training for the lawyers and other professionals who are involved with child witnesses.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.